COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Farmer, 2014 ONCA 823
DATE: 2014-11-20
DOCKET: C57682

Sharpe, Hourigan and Pardu JJ.A.

WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community.

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order.

BETWEEN

Her Majesty the Queen
Appellant

and

Alexander Nathan Earle Farmer
Respondent

Suhail A.Q. Akhtar, for the appellant
Mark Halfyard, for the respondent

Heard: October 22, 2014

On appeal from the acquittal entered on August 29, 2013 by Justice Wolfram Tausendfreund of the Superior Court of Justice, sitting without a jury.

Sharpe J.A.:

[1] This is a Crown appeal from an acquittal following a judge alone trial on charges of accessing and possession of child pornography. The appeal raises issues as to the meaning of control and wilful blindness in relation to the offence of possession of child pornography.

[2] The respondent and his partner, M.R., shared a basement apartment. M.R. downloaded child pornography on a computer owned by the respondent and used by both men. The respondent had no interest in child pornography and did not access the material M.R. had downloaded. His partner accepted responsibility, admitted that he had downloaded the prohibited material, pleaded guilty and was sentenced for both possession of and accessing child pornography.

[3] The trial judge found that the respondent “was at least suspicious” that M.R. had downloaded the prohibited material on the computer. The trial judge also found that the respondent “condoned the use [M.R.] made of the computer” and that “included accessing child pornography, an activity to which the [respondent] was wilfully blind.” The trial judge recognized that a finding that the respondent “had control and knowledge on the basis of wilful blindness” would ordinarily result in conviction. However, he remained “troubled” and acquitted the respondent on the basis of the doctrine of innocent possession.

[4] The Crown appeals the acquittal and asks this court to substitute a conviction on the basis of the facts as found by the trial judge.

[5] For the following reasons, I conclude that the trial judge committed legal errors in his reasoning with respect to both wilful blindness and the doctrine of innocent possession. However, despite those errors, he reached the legally correct result. He was rightly troubled by the prospect of convicting the respondent and I would dismiss the Crown’s appeal.

FACTS

[6] The respondent and M.R. lived together in a room in the home of the respondent’s parents. The respondent owned a desktop computer that both men used. M.R. owned a laptop computer that he used exclusively. Both men worked, but on different schedules. M.R. was often alone in the couple’s room. He made extensive use of the respondent’s computer.

[7] M.R. had a “diaper fetish” which involved role-playing. The respondent participated a few times, but then refused to continue to do so.

[8] The respondent admitted that on two occasions he saw M.R. looking at images of teenaged boys dressed in underwear on the desktop computer. It is common ground that these images were not child pornography. He also stated that sometimes when he returned to the room from work, M.R. would immediately change the programme or minimize what was on the computer screen.

[9] Acting on a warrant, the police seized both computers and charged both men with accessing and possession of child pornography.

[10] They found a large number of images and videos depicting child pornography on the desktop computer. The files were stored in subfolders that were not readily apparent or easily accessible, and there was evidence that the respondent was not particularly computer literate. The Crown relied upon statements made by the respondent at the time of the seizure and after his arrest. He told the police that he knew, or at least had a good idea, that there might be child pornography on his computer, but that he had not downloaded or accessed it and had no interest in it. In a video statement, the respondent stated that he knew M.R. accessed child pornography in relation to his diaper fetish, that he had seen M.R. looking at images of teen males dressed in underwear on the desktop computer, and that he had, in the words of the trial judge, “then put two and two together.

REASONS OF THE TRIAL JUDGE

[11] The trial judge made the following findings of fact:

1. Child pornography found on the desktop computer was accessed by M.R.
2. The desktop computer was the property of the respondent.
3. Both the respondent and M.R. had free and unfettered access to the desktop computer.
4. The respondent had no interest in child pornography. He neither downloaded nor accessed any of the child pornography found on the computer.
5. The respondent was at least suspicious that child pornography had been downloaded on his computer by M.R. but condoned it because M.R. was his partner for whom he cared.
6. The respondent took no steps to confirm his suspicion or to delete all child pornographic images to prevent further access.

[12] The trial judge cited R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253 for the proposition that both knowledge and control are essential elements to a finding of possession under s. 4(3) of the Criminal Code, R.S.C. 1985, c. C-46.

[13] He found that the respondent had control of the desktop computer. It was his property and he could have attached any conditions to its use had he been so inclined.

[14] With respect to the statements made by the respondent at his home and at the police station on the day of his arrest, the trial judge noted the respondent’s explanation that the fact of his arrest had focused his mind on the nature of the charges and that it was only after his arrest that he concluded that his suspicions were probably well-founded. The trial judge found that this explanation raised a doubt on the issue of the respondent’s actual knowledge at the relevant time, a doubt that he resolved in favour of the respondent.

[15] However, the trial judge also found that the respondent was “at least suspicious” that M.R. had “accessed and perhaps downloaded child pornography.” The trial judge referred to the Supreme Court’s definition of wilful blindness in Sansregret v. The Queen, 1985 79 (SCC), [1985] 1 S.C.R. 570 at p. 584. The trial judge concluded that the respondent had been wilfully blind as to the presence of child pornography on his computer:

On these facts, I find that but for his relationship with his partner, the [respondent] would and should have taken steps to make inquiries of [M.R.] whether he had downloaded, or at least accessed, child pornography and if so, to forthwith delete all such images and to cease and desist in such activity in the future in the use by him of the computer of the [respondent].

[16] Despite finding both control and wilful blindness, the trial judge remained “troubled” and went on to acquit the respondent on the basis of the doctrine of “innocent possession”:

Taking the Crown’s case at its highest, the [respondent] condoned the use [M.R.] made of the computer… and that included accessing child pornography, an activity to which the [respondent] was wilfully blind.

[17] The trial judge cited the decision of this court in R. v. Chalk, 2007 ONCA 815, 88 O.R. (3d) 448, where Doherty J.A. confirmed the existence of the innocent possession doctrine but held that it was not available on the facts of that case. The trial judge held that Chalk was distinguishable on its facts and concluded that the innocent possession doctrine could and should be enlarged to apply to the respondent’s conduct.

ISSUES

[18] The Crown submits that the trial judge erred by enlarging and applying the doctrine of innocent possession.

[19] The respondent argues that while the trial judge may have used an inapt legal description to describe his finding, he correctly found that the element of control required to support a finding of possession was absent.

[20] The respondent further argues that the trial judge erred with respect to the legal definition of wilful blindness and that the facts as found by the trial judge were not sufficient to establish wilful blindness.

ANALYSIS

1. Wilful blindness

[21] I agree with the respondent that the trial judge erred in his articulation of the legal test for wilful blindness.

[22] In R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, the Supreme Court explained, at para. 21, that “wilful blindness imputes knowledge to an accused whose suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries” (emphasis in original). Writing for the court, Charron J. adopted Sopinka J.’s statement in R. v. Jorgensen, 1995 85 (SCC), [1995] 4 S.C.R. 55, at para. 103: “A finding of wilful blindness involves an affirmative answer to the question: Did the accused shut his eyes because he knew or strongly suspected that looking would fix him with knowledge?” Briscoe emphasizes the need to keep the concepts of wilful blindness and recklessness distinct. As explained in Sansregret, at p. 584:

[W]hile recklessness involves knowledge of a danger or risk and persistence in a course of conduct which creates a risk that the prohibited result will occur, wilful blindness arises where a person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth. He would prefer to remain ignorant. The culpability in recklessness is justified by consciousness of the risk and by proceeding in the face of it, while in wilful blindness it is justified by the accused’s fault in deliberately failing to inquire when he knows there is reason for inquiry. [Emphasis added in Briscoe.]

[23] Charron J. also cited with approval the discussion of wilful blindness by two eminent criminal law scholars. Professor Glanville Williams, in Criminal Law: The General Part, 2nd ed. (London: Stevens & Sons,1961), at p. 159, explained the “very limited scope” of wilful blindness in the following way:

A court can properly find wilful blindness only where it can almost be said that the defendant actually knew. He suspected the fact; he realised its probability; but he refrained from obtaining the final confirmation because he wanted in the event to be able to deny knowledge. This, and this alone, is wilful blindness. It requires in effect a finding that the defendant intended to cheat the administration of justice. Any wider definition would make the doctrine of wilful blindness indistinguishable from the civil doctrine of negligence in not obtaining knowledge. [Emphasis added in Briscoe.]

[24] Referring to Professor Don Stuart’s Canadian Criminal Law: A Treatise, 5th ed. (Toronto: Carswell, 2007), at p. 241, Charron J. agreed, at para. 24, that “deliberate ignorance” seems more descriptive than “wilful blindness”, as it connotes “an actual process of suppressing a suspicion.” Charron J. added that “[w]hile a failure to inquire may be evidence of recklessness or criminal negligence… wilful blindness is not simply a failure to inquire but, to repeat Professor Stuart’s words, ‘deliberate ignorance.’”

[25] In R. v. Duncan, 2013 ONCA 774, [2013] O.J. No. 5838, this court considered language in a jury instruction to the effect that wilful blindness could be established on the basis of evidence that the accused knew child pornography “could be accessed through Limewire or had a suspicion that it could be.” The court held that this language was too broad and failed to deal with the level of suspicion required to engage the doctrine of wilful blindness.

[26] In my respectful view, the same error is revealed by the reasons of the trial judge in the present case. While he did cite Sansregret, he did not focus on the need to find that the respondent “shut his eyes because he knew or strongly suspected that looking would fix him with knowledge” or became “aware of the need for some inquiry [yet] decline[d] to make the inquiry because he [did] not wish to know the truth.” The trial judge was only prepared to find that the respondent was “at least suspicious” that M.R. had accessed or downloaded child pornography and that but for his relationship with M.R. he “would and should” have made further inquiries. In my view, while this might support a finding of negligence or recklessness, it falls short of a situation where it “can almost be said that the defendant actually knew” so as to amount to wilful blindness.

[27] A second and related point is that in finding wilful blindness in relation to the charge of possession of child pornography, the trial judge based his finding in part on imputed knowledge that M.R. accessed child pornography. These two crimes are distinct. As held by the majority in Morelli, at para. 31, evidence that a person accessed child pornography on a computer does not establish the offence of possession of child pornography. There was no evidence that the non-pornographic images of young males in underwear seen by the respondent were downloaded, and the trial judge framed his finding on the respondent’s suspicion in terms of “whether [M.R.] had downloaded, or at least accessed, child pornography.” A finding that the respondent was wilfully blind to the fact that M.R. had accessed child pornography does not amount to a finding that the respondent was wilfully blind to the fact that M.R. had downloaded child pornography. On the authority of Morelli, downloading is required to support a finding of possession.

[28] I conclude, accordingly, that the trial judge erred in law in finding that the respondent had the requisite knowledge to support a conviction for possession of child pornography.

2. “Innocent possession”

[29] As explained in Morelli, at para. 15, both knowledge and control are essential elements of possession. I have already considered the element of knowledge and turn now to the element of control and to the Crown’s submission that the trial judge erred in his application of the doctrine of “innocent possession”.

[30] Possession is defined in s. 4(3) of the Criminal Code in the following terms:

(a) a person has anything in possession when he has it in his personal possession or knowingly

(i) has it in the actual possession or custody of another person, or

(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and

(b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.

[31] The “innocent possession” doctrine relied on by the trial judge is derived from cases where an accused does exercise control over contraband, but with “the absence of an intention to exercise control beyond that needed to destroy the contraband or otherwise put it permanently beyond one’s control”: Chalk, at para. 24, citing R. v. Christie (1978), 41 C.C.C. (2d) 282 (N.B.S.C. App. Div.).

[32] I agree with the submission of the Crown that the respondent cannot claim the benefit of the innocent possession doctrine. Innocent possession applies where an accused has a valid explanation for any control exercised over contraband. The respondent did not take control of the contraband to destroy it or to remove it from his computer.

[33] The question here is whether the respondent had control over the contraband in the first place. Although the innocent possession doctrine does not apply, the innocent possession cases are relevant to this issue as they elucidate what is meant by “control”. Chalk, at para. 23, includes the following passage from Christie, at p. 287:

In my opinion, there can be circumstances which do not constitute possession even where there is a right of control with knowledge of the presence and character of the thing alleged to be possessed, where guilt should not be inferred, as where it appears there is no intent to exercise control over it.

[34] Similarly, it was held in R. v. York, 2005 BCCA 74, 193 C.C.C. (3d) 331, at para. 20:

Personal possession is established where an accused person exercises physical control over a prohibited object with full knowledge of its character, however brief the physical contact may be, and where there is some evidence to show the accused person took custody of the object willingly with intent to deal with it in some prohibited manner. [Emphasis added.]

[35] I agree with the respondent that while the trial judge may have used an inapt legal label or category, he did not err in finding that the Crown had failed to establish the element of control required for possession. As the trial judge put it, taking the Crown’s case at its highest, through his failure to act, the respondent “condoned the use [M.R.] made of the computer… and that included accessing child pornography.” In my view, that conduct falls short of establishing a degree of control over the contraband sufficient to ground criminal liability for possession.

[36] As the owner of the computer, the respondent may have had the right to exercise control over its use. However, he did not “consent”, within the meaning of s. 4(3)(b) of the Criminal Code, to have child pornography downloaded on his computer. He condoned M.R. having free access to and use of his computer but he did not condone, agree or give permission to M.R. to use the computer to download child pornography. Nor did he did do anything that could amount to taking custody of the contraband with the intent to use or deal with it.

[37] In Chalk, the accused was arrested on an unrelated charge and called his girlfriend to instruct her to delete files containing child pornography stored on a shared computer. The Crown relies on the italicized words in the following passage from Chalk, at para. 26, where this court rejected the application of the innocent possession doctrine:

On the trial judge's findings, the appellant did not have possession of the child pornography strictly for the purposes of destroying that pornography. He knew that the pornography was on the computer's hard drive for several months. During that time, he regularly used the computer and had control over the pornography in the sense that he could have deleted it from the computer at any time had he chosen to do so. On his own admission, he ultimately decided to delete the pornography because he feared that the police would discover it when they examined his computer. In those circumstances, the appellant's instruction to delete the material was a manifestation of his longstanding power or authority over the material. That control had existed for several months and was not merely incidental to an innocent purpose.

[38] I am unable to accept the submission that the italicized words answer the issue posed in this case. As is clear from reading this passage as a whole, the evidence that the accused in Chalk asked his girlfriend to delete the contraband could not be viewed in isolation. Rather than being evidence of an innocent purpose, his instruction “was a manifestation of his longstanding power or authority over the material.”

[39] In my view, to accept the Crown’s argument that the respondent had control over the child pornography by virtue of his ownership, especially when combined with a finding of imputed intention, would unduly stretch the limits of criminal liability. To convict the respondent of a serious criminal offence that entails a minimum period of incarceration simply because he suspected his partner might have been using his computer to access and perhaps download child pornography would not correspond to his limited level of moral culpability.

[40] Although there are flaws in the trial judge’s legal analysis, his assessment of the case was essentially sound. He was rightly “troubled” by the prospect of convicting the respondent of this offence, and the respondent was properly acquitted of this charge.

[41] I recognize, of course, that child pornography poses a serious problem for our society and that criminal sanctions must be imposed against those who involve themselves in this deeply destructive and harmful activity. However, we must not lose sight of the basic principles of criminal law, and we should preserve the criminal sanction for conduct that is truly criminal. In this case, M.R. has been convicted and sentenced for the crime of possession of child pornography. On the facts as found by the trial judge, the respondent was not sufficiently aware of or involved in the commission of that crime to warrant conviction.

DISPOSITION

[42] For these reasons, I would dismiss the Crown’s appeal.

Released: (RJS) NOV 20, 2014
“Robert J. Sharpe J.A.”

“I agree C.W. Hourigan J.A.”

“I agree G. Pardu J.A.”